The Westminster Magistrate’s court of London allowed India’s request to extradite the (in) famous diamantaire, Nirav Modi, on February 25, in connection with the PNB scam. The decision has created headlines, and many people hope that Nirav Modi would finally be brought to justice this time.
What is the PNB scam all about and how is Nirav Modi involved?
Nirav Modi, a big name in the diamond industry of India and presently an asylum seeker in the United Kingdom, is the main perpetrator in the PNB fraud case. It was in February 2018 when the case came to light. Punjab National Bank discovered that it was defrauded of an amount of Rs. 11,400 crore, due to a fraudulent undertaking letter issued by its Brady House branch in Mumbai. Nirav Modi was found to be the person behind this fraud. The PNB Brady House branch issued fake letters of undertakings on behalf of Nirav Modi’s firms which were used by him to secure credit from overseas branches of Indian banks. He secured a lot more fake guarantees subsequently, with the help of some employees of the Brady house branch. The PNB management remained oblivious to all of this because the employees misused the SWIFT network. The transactions done using this network were never recorded in the main system, and hence the management was ignorant of the entire scam for a long period of time.
On 29 January 2018, this illegal transaction was reported to the Bombay Stock Exchange, and Punjab National Bank filed a police complaint against Nirav Modi, his uncle Mehul Choksi and others accusing fraud to the tune of ₹2.81 billion. An extensive investigation was launched into the matter and several PNB employees were found to have connived with Nirav Modi to commit the fraud. Many people were arrested during February 2018, and a lot of properties of Nirav Modi were seized in connection with this case.
On February 27, 2018, a bailable warrant by a magistrate court was issued against him. In the month of June 2018, the INTERPOL issued a red corner notice against him in connection with money laundering. In the following months of 2018 and 2019, there has been a lot of progress regarding his extradition proceedings. However, this current verdict provided by the Westminster Magistrate’s court in the case of The Government of India v. Nirav Deepak Modi is by far the most important and crucial judgement in this case, that has again given rise to expectations regarding Nirav Modi’s extradition to India.
An analysis of extradition and human rights provisions in the context of this judgement.
In the present case, the counsels on behalf of Nirav Modi raised several issues that challenged his extradition to India. These issues were based on certain provisions of Extradition Act, 2003. This section includes an analysis of these provisions and the reasoning behind the court’s judgement.
What is the Extradition Act, 2003?
This act came into force in 2004, and the United Kingdom Parliament has drafted it. It is the essential statute that regulates all extradition requests, either made by or from the UK. The act is divided into 5 parts. Parts1 and 2 are all about those countries that belong to the European Union and have an extradition treaty with the UK, respectively. Part 3 deals with arrest warrants and extradition requests. Part 4 and 5 deal with powers regarding search and arrest and miscellaneous provisions respectively.
Did Nirav Modi’s act constitute Extradition offences?
Section 137 of the Extradition Act, 2003 lays down the essentials that must be met in order to constitute an extradition offence, which is mainly-
- (i) the conduct must occur in the category 2 territory (India has an extradition treaty with the UK and hence comes under the category 2 territory)
- (ii) the conduct must constitute an offence under the law of UK and must be punishable with imprisonment/detention for 12 months or greater
- (iii) the conduct is also punishable under the law of category 2 territory.
The Government of India contended that the conduct happened in India in all the cases, either wholly or partly. It was also argued that the conduct constituted offences of “conspiracy to defraud” and “money laundering” under the UK law. Furthermore, it was argued that the conduct of Nirav Modi was punishable under sections 120B, 420, and 409 of the Indian Penal Code, section 12 of the Prevention of Corruption Act, and Prevention of Money Laundering Act, 2002. The counsels on behalf of Nirav Modi relied upon the submissions of Justice Abhay Thipsay (a retired judge of the High Court of judicature in Allahabad). However, the Westminster Court refused to attach any weight to them, giving the reasons that his submissions have never been objectively scrutinised, and they might have been politically motivated. The Westminster Court was satisfied that GOI has proved that the requests’ conduct can satisfy the notional English offences’ requirements if proved (This test was laid down in the case of Norris v USA). Hence, it was established that Nirav Modi’s act constituted extradition offences.
Analysis of Human Rights and the court’s opinion on a “Free and Fair Trial”
The counsels on behalf of Nirav Modi challenged his extradition based on Article 3 and Article 6 of the European Convention on Human Rights. While Article 6 states about the convict’s right to a fair trial, Article 3 states that nobody shall be made subject to any kind of torture or inhuman treatment.
The court’s analysis of Article 6 of the European Convention on Human Rights
The defence counsels argued that Nirav Modi would face a “flagrant denial” if he was extradited to India. They submitted that after the entire PNB scam, Nirav Modi had been vilified to a large extent in India, and he has been made subject to humiliation on several media platforms in India. Several news articles published on different Indian media platforms were submitted in order to demonstrate the extremely negative public perception of Nirav Modi. Justice Markandey Katju, a retired Supreme Court Judge of India, also made certain remarks in this case that are necessary to analyze. Justice Katju pressed on the idea that Indian courts have been politicised to a large extent, they are subject to the whims and fancies of the ruling party and hence Nirav Modi would not get a fair trial. However, most of his submissions focused on the criticism of the ruling party and how all Indian institutions were under their control. The Westminster Court found these submissions as inappropriate and attached little weight to them. It observed that since the case of Nirav Modi is high-profile. It is bound to attract sensational commentaries from both the media and the political fraternity. While terming Justice Katju’s opinions as “far less than objective and unreliable”, it observed that his submissions were more of a personal vendetta against the Judiciary and ruling party of India and could not be considered as reliable evidence. The Westminster Court declared that since India is governed by a written constitution that lays down the core ideals of justice, it is highly impractical to assert that some amount of political or media comments would result in a “flagrant denial of justice” to Nirav Modi. Saying so, it rejected this contention of the defendants.
The opinion of the court on Nirav Modi’s mental health if extradited
The challenge under article 3 was that Nirav Modi might face torture, intimidation, or inhuman treatment if he is extradited. The court clarified at the very outset that the test under Article 3 is very stringent and must be satisfied substantially. “In general, a very strong case is required to make good a violation of Article 3. The test is a stringent one and not very easy to satisfy” (The case of Elashmawy v Court of Brescia, Italy [2015] EWHC 28 (Admin)). The court also mentioned Section 91 of the Extradition Act, 2003, where it has been stated that a person must be discharged if it is evident that an extradition would be unjust towards his physical or mental health. In response to this challenge, the Government of India submitted that if extradited, Nirav Modi would be held at Barrack No 12, Arthur Road Jail.
Through their detailed submissions, the Government of India clarified that Nirav Modi would be provided adequate personal space, medical assistance, hygienic living conditions, clean and adequate food, water and daylight. It was also submitted that stringent security measures would be adopted to ensure that he is not threatened, tortured, or hurt in any way possible inside the prison. The Westminster Court was also provided with a complete video recording of Nirav Modi’s prison. The court studied Nirav Modi’s medical reports in detail and rejected any immediate possibility of grave danger to his mental health if he was extradited. It also demonstrated trust in the assurances of the Indian Government after perusing the documents and evidence provided by them. Relying on these submissions, the court rejected the Section 91 challenge and declared that neither was there a grave danger of torture or violence towards Nirav Modi nor would his mental health be gravely affected if he was extradited to India. Hence, the Westminster Court has allowed Nirav Modi’s extradition to India
Is the possibility of extradition as real as it appears?
Although this decision comes as a big victory for the Indian government, in the PNB scam case, it might be too early to consider that Nirav Modi will be extradited to India now. With the legal resources available to him, immediate extradition seems quite unreal at the moment. He can seek asylum in the UK and might even appeal in the House of Lords. He could also knock on the doors of European courts for violation of his human rights. However, this does not mean that the present judgement does not hold any value. It will certainly act as a guiding document in future proceedings related to this case, and might serve its purpose at the right time.
This article is authored by Avikalp Mishra, student at NLIU, Bhopal.
